Terrorism and War

Can military courts try terrorists?

On June 13, 1942, a German submarine deposited four Nazi agents on a beach near Amagansett, Long Island; four days later another German sub dropped four more agents on Ponte Verda Beach in Florida. The eight agents--who spoke English and brought with them explosives, incendiary devices, and nearly $200,000--were to fan out across New York City, Chicago, and Cincinnati, blend into their surroundings, and then embark on a massive sabotage campaign against train stations, department stores, industrial facilities, and hydroelectric plants. But before the campaign got underway, one agent, George Dasch, got cold feet and turned himself in to the FBI. With Dasch's help, the FBI arrested the seven other would-be saboteurs.

With the German agents in custody, American law enforcement faced a dilemma much like the dilemma it faces today: Can the criminal justice system serve justice against terrorists? Because President Roosevelt wanted the men executed, and because he suspected that a regular criminal trial would not bring about that result, Roosevelt--in consultation with Attorney General Francis Biddle--signed an order creating a seven-member military commission to try the men. They were charged with violating the law of war, which prohibits crossing enemy lines in civilian dress with the intent to commit hostile acts. The trial began on July 8. One month later Dasch and another would-be saboteur who had cooperated with the FBI were sentenced to lengthy prison terms (although after the war, the two were paroled by Harry Truman); the six other Germans were executed.

Since the World Trade Center fell, the FBI has detained more than 1,100 people who may be connected to the September 11 attacks, or who may be plotting terrorism in the future. To do so, it has relied on laws covering immigration, perjury, and other areas--and now it can rely on the recently enacted U.S.A. Patriot Act, which gives the FBI increased leeway in gathering domestic intelligence. But rounding people up may be legally easy compared to putting terrorists--be they Al Qaeda foot soldiers or Osama bin Laden himself--on trial. And that's why some legal scholars--and even, apparently, some government officials--are arguing that it's time to consider a military tribunal once again.

The first argument for a military tribunal has to do with symbolism. As Spencer Crona and Neal Richardson argued in a 1996 article in the Oklahoma City University Law Review, "The strategy of treating terrorists as ordinary criminals, and placing them into the slow and indifferent mill of our criminal justice system, for acts that far transcend ordinary criminal acts, overlooks the essential difference in the nature of their crimes." Criminal trials in front of juries can drag on--one of the trials for the 1993 World Trade Center bombers lasted nearly nine months--and the entire proceeding can eventually end in mistrial if a single juror refuses to join in the verdict, as almost happened at the end of Manuel Noriega's seven-month-long trial in 1992. A military tribunal would be comparably swift and could be decided by a simple majority or super-majority of judges.

Another factor is security. Some worry that trials of terrorists or their accomplices, held in populated urban centers, would pose a tempting target for additional terrorist attacks. One advantage of a trial by military tribunal is that it doesn't have to be held in any particular jurisdiction or in any particular courtroom: The tribunals could be held on secure, relatively isolated military bases in the United States or even abroad.

But the most compelling arguments in favor of military tribunals concern the trial process itself. The rules governing any military tribunal could be established by order of the president or Congress. As such, the tribunal could be given discretion to decide what constitutes legitimate evidence, and what level of secrecy must be maintained. As Ruth Wedgwood, a Yale law professor and former federal prosecutor, notes, there's plenty of valuable and weighty evidence that can't be admitted into a federal district court because of extremely restrictive hearsay laws. "Take the news reports that Osama bin Laden told his mom, a few days before September 11, that he was going to have to be quiet for a while," says Wedgwood. "In a trial in a federal district court, you'd have to have his mother testify for that piece of evidence to be admissible. If she told a friend about the call, the friend's testimony would be considered hearsay." The rules of evidence for a military tribunal, by contrast, could be as loose as the tribunal's creator desired.

Even more important than the evidence prosecutors might be prohibited from using in a criminal trial is the evidence they would be reluctant to present in such a forum. Because defendants in criminal trials are entitled under the Sixth Amendment to open proceedings, any information introduced in them becomes public--which can cause problems. In the 1997 trial of Ramzi Yousef for his role in the 1993 World Trade Center bombing, it was disclosed that the twin towers were engineered to withstand a direct hit from a Boeing 707 plane. Is that why the September 11 hijackers used planes bigger than the 707?